Anand Naidu a/l Raman v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 30 November 2000
• Neutral Citation: [2000] SGCA 67
• Published date: 04 May 2004
• Year: 2000
• Citation: [2000] SGCA 67
• Court: Court of Appeal (Singapore)

Anand Naidu a/l Raman ...appellant

v

Public Prosecutor ...respondent

Citation:	Criminal Appeal No 15 of 2000
Jurisdiction:	Singapore
Date:	2000:11:30
	2000:10:23
Court:	Court of Appeal
Coram:	M P H Rubin J
Counsel:	R Palakrishnan with Daniel Koh (Palakrishnan & Partners) for the appellant
	Jaswant Singh (Deputy Public Prosecutor) for the respondent

HEADNOTES:

Criminal Law

– Drug trafficking – Appeal against conviction – Whether conviction was safe and satisfactory – Misuse of Drugs Act (Cap. 185) s 5(1)(a)

Facts

It was undisputed that the appellant had given to one Tan Siew Lam (‘TSL’)a plastic bag containing 62.76 grams of morphine. This transaction was witnessed by officers of the Central Narcotics Bureau and both the appellant and TSL were arrested soon after the transaction took place. They were jointly tried in the High Court and were both convicted. TSL chose not to appeal. The appellant’s story was that he was an innocent courier who had unwittingly delivered the drugs. He claimed that he was running an errand for a friend named Ah Seng (aka John) and did not know that he was delivering drugs.

According to the appellant, he had planned to meet John at the Ang Mo Kio MRT station in order to give him a ride back to Johore. However, upon arriving at the station, John told him that he had to wait for his girlfriend and thereafter he had to make a delivery to Bishan before he could return with the appellant to Johore. The appellant, being pressed for time, suggested that he make the delivery while John waited for his girlfriend. John agreed and gave him a plastic bag to give to TSL. The appellant claimed that he never suspected that the contents were drugs or anything illegal. Instead, he believed that he was delivering Chinese New Year goodies and decorations, the Chinese New Year being just a few days away. Upon meeting TSL, the appellant was given a red packet containing $168.00.

Upon his arrest and thereafter, the appellant told lies and never mentioned John or any other aspect of the story he relied on in court. In court, he confessed to his lies but said that he lied because he was afraid when he discovered he was being arrested for a drug related offence, which he knew was very serious. At the trial, TSL raised a token defence but testified for the appellant and told a story that appeared to corroborate the appellant’s story.

The judge rejected the appellant’s story and convicted him. He was sentenced to death as required by s 33 of the Misuse of Drugs Act and the second schedule to the Act. The appellant appealed against his conviction.

Held

, dismissing the appeal

(1) Pursuant to s 18(1) of the Act, the appellant, being in possession of the plastic bag which contained the drugs, was presumed to have had the drugs in his possession and further, under s 18(2), was presumed to know the nature of those drugs. The burden was thus on the appellant to prove, on a balance of probabilities, that he did not know what the contents of the plastic bag were. It was for the appellant to satisfy the court that he was an innocent courier (see ¶ 23).

(2) The argument that the CNB had not conducted a sufficiently thorough investigation which would have revealed evidence to support the appellant’s story was highly speculative. The investigations that must be carried out by the CNB must depend on the circumstances and in the circumstances of the case, the CNB could not be faulted for not making any further investigations into those areas argued for by the appellant’s counsel (see ¶ 24).

(3) The crux of the matter was that the appellant had lied upon arrest and had persistently failed to reveal the story he alleged was true until the trial. If he was innocent and truly believed that he was delivering something innocuous like food and decorations, there would have been no need for him to lie when questioned upon arrest. On the contrary, he should have been forthcoming with the story about John. The reason for the lies – fear upon arrest – was an excuse that rang hollow particularly because he remained silent about this defence even after he was formally charged. Even the appellant recognised that had he told the arresting officers about John, in all probability John could have been arrested. If the appellant were truly innocent and fearful, he would not have hesitated to tell the arresting officers about John (see ¶ ¶ 25-27).

(4) It does not follow that a witness who has lied once ought to suffer the rejection of all his evidence. In such circumstances, the witness’ evidence must be scrutinised with great care. It is not necessary to enter a discourse on the distinction between ‘credibility lies’ and ‘probative lies’. Ultimately, what significance a court should place on a lie must depend on the circumstances and the issue in dispute. In this case, the appellant’s lies upon arrest were told because of a realisation of guilt and this guilt stemmed from his knowledge of the contents of the plastic bag (see ¶ 29); Zoneff v R (2000) HCA 28 referred.

(5) There was a contradiction in the judge’s grounds of decision concerning the standard of proof expected of the appellant relating to his knowledge of the drugs. This question therefore followed: did this confusion result in a substantial miscarriage of justice as laid down in s 54(3) of the Supreme Court of Judicature Act (Cap. 322)? In Ng Eng Eng Kooi v PP [1970] 1 MLJ 267, the Federal Court of Malaysia held that where a trial judge misdirected himself as to the quantum of proof necessary to rebut a presumptive fact, but rejected the evidence of the defence witnesses in toto, the misdirection had no effect on the result which would still be the same if the trial judge had correctly directed himself. The judge’s mistake would, in such a case, not result in a substantial miscarriage of justice. This was true of this case and, therefore, the contradiction occasioned no miscarriage of justice and the appeal would therefore be dismissed (see ¶ ¶ 31-35); Ng Eng Eng Kooi v PP [1970] 1 MLJ 267 followed.

Case(s) referred to

Ng Eng Eng Kooi v PP

[1970] 1 MLJ 267 (folld)

R v Lucas

[1981] QB 720 (refd)

Zoneff v R

(2000) HCA 28 (refd)

Legislation referred to

Misuse of Drugs Act (Cap. 185) ss 5(1)(a) and 33

Supreme Court of Judicature Act (Cap. 322) s 54(3)

JUDGMENT:

Grounds of Judgment

1. The appellant was convicted by the High Court of a capital charge of trafficking in 3 packets of morphine containing a net weight of 62.76 grams. He was sentenced to suffer the mandatory punishment of death. We heard his appeal and dismissed it. We now give our reasons.

2. We should add that jointly tried with the appellant before the High court was one Tan Siew Lam (TSL). The charge against TSL was in relation to having the same three packets of morphine in his possession for the purposes of trafficking. Neither TSL nor the appellant objected to the joint trial. TSL was similarly convicted and sentenced, but he chose not to appeal.

The facts

3. A great part of the evidence tendered before the court was undisputed. On 1 February 2000, at about 10.10pm a number of Central Narcotics Bureau (CNB) officers were on surveillance duties in the vicinity of Block 163, Bishan Street 13, #08-168 (the flat). TSL resided in the flat. A Malaysian registered vchicle JEQ 8706 was seen being driven into the car-park of the adjacent Block 164. The driver was later ascertained to be the appellant. He was then wearing a dark-coloured cap. He alighted from the vehicle and walked to the void deck of Block 164 where he made a call from a public telephone located there. Sgt Eddie Wee who walked past him heard him say over the phone "Come down. I am here." The number of that public phone was 3543208. The appellant then walked back to his vehicle and stood beside it. It was then about 10.15pm. The Call Trace Report of Singtel Mobile showed that a 10-second call was made to mobile phone No 96714234 from telephone 3543208 at 10.1219 pm.

4. At about the same time, TSL was seen coming out of the flat. He was talking on a handphone as he walked down the staircase to the ground floor. On reaching the ground, he then walked in the direction of Block 164, towards the appellant. TSL was not carrying anything. As TSL met up with the appellant, the latter took an orange-coloured plastic bag from the car and handed it over to TSL who then walked away with the plastic bag in the direction of Block 163 which was the same direction he came. This handing over of the orange plastic bag was seen by two CNB officers, S/Sgt Tan Yian Chye and Sgt Eddie Wee.

5. At Block 163, TSL took the lift up to the 8^th floor and he was arrested as he emerged from the lift. The orange plastic bag held by TSL was seized; so were a bunch of keys and a handphone (bearing No. 96714234) held by Tan in his left hand. Upon being questioned by a CNB officer, Ronnie See, TSL said the orange-coloured plastic bag contained four packets of heroin and they belonged to him.

6. Much later when the orange plastic bag was opened by the Investigating Officer, Insp Tan Choon Hoe, three newspaper bundles were found therein and in each newspaper bundle was a plastic packet containing yellowish granular substance. The substance in the three packets was analysed to contain not less than 62.76 grams of morphine.

7. In the meantime, the appellant drove off from the car-park of Block 164 but soon stopped his vehicle at the car-park besides Block 162. It was then about 10.17pm. He alighted from his vehicle and walked towards a public telephone at the void deck of Block 167 where he made a call. There, he was arrested by CNB officers. The officers took the appellant back to his vehicle and seized a red packet, with $168/- in it, which was on the driver’s seat. A black and red cap was found on him as well.

8. A while later, at the car-park, the appellant, on being asked by Sr...